Opinion filed October 11, 2012

In The

Eleventh Court of Appeals 

__________

No. 11-10-00299-CR

__________

RECORO RODRIGUEZ VELASQUEZ, SR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 82nd District Court

Falls County, Texas

Trial Court Cause No. 7363

M E M O R A N D U M O P I N I O N

Recoro Rodriguez Velasquez, Sr.1appeals from the judgment revoking his community 

supervision and adjudicating his guilt. Velasquez had previously pleaded guilty to the charge of

bail jumping and failure to appear, and while the trial court found the evidence sufficient to 

support his plea, it deferred adjudicating guilt and placed him on community supervision for ten 

years. As a condition of supervised release, Velasquez was ordered to pay restitution of $68,433 

for past-due child support by paying $571 each month. Later, Velasquez filed a motion to 

 

1We note that the name of appellant in most of the documents in the clerk’s record, including the judgment, is shown to 

be “Recardo Rodriguez Velasquez, Sr.” However, the indictment reflects his first name to be “Recoro.”
2

modify the minimum monthly payments because his monthly income was less than his monthly 

restitution payment. The trial court denied his request. Just before the ten-year term expired, the 

State moved to proceed to adjudicate his guilt because “he has failed to pay restitution,” to which 

Velasquez pleaded not true based on inability to pay. After hearing testimony, the trial court 

revoked Velasquez’s community supervision and adjudicated his guilt on the original count for 

bail jumping and failure to appear. The trial court assessed punishment at confinement for five 

years, which it probated and required payment of the original restitution as a condition of 

probation. We reverse and remand. 

In his sole issue, Velasquez argues that the trial court abused its discretion when it 

revoked his community supervision because the evidence was insufficient to show that he had 

the ability to pay. Specifically, he argues that the trial court failed to consider the statutory 

factors when making its determination.

We review a trial court’s decision to revoke community supervision for abuse of 

discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 

S.W.2d 492, 493 (Tex. Crim. App. 1984). Abuse of discretion occurs “only when the trial 

judge’s decision was so clearly wrong as to lie outside that zone within which reasonable persons

might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992). 

In a proceeding to adjudicate guilt, the State has the burden to prove a violation of the 

conditions of community supervision by a preponderance of the evidence. Rickels, 202 S.W.3d 

at 763–64; Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court is the 

judge of a witness’s credibility and the weight to be given the testimony, so we view the 

evidence in the light most favorable to the trial court’s ruling. Garrett v. State, 619 S.W.2d 172, 

174 (Tex. Crim. App. 1981).

When a trial court determines whether to revoke community supervision and adjudicate 

guilt on the sole ground of failure to pay restitution—unlike other violations—it must investigate 

the reasons for the failure. Bearden v. Georgia, 461 U.S. 660, 668–69 (1983). If the 

investigation reveals that the failure was intentional, revocation and imprisonment may be 

appropriate; however, if the failure was not the fault of the probationer, the court must determine 

whether alternatives are available that would adequately meet the State’s interests. Id. The 

Supreme Court advised that, “if the probationer has made all reasonable efforts to pay the fine or 

restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke 
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probation automatically without considering whether adequate alternative methods of punishing 

the defendant are available.” Id. “This lack of fault provides ‘a substantial reason which 

justifies or mitigates the violation and makes revocation inappropriate.’” Id. at 669 (citing 

Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)). Thus, although a plea of true is generally 

sufficient to support a judgment that revokes community supervision, when the sole basis is 

failure to pay restitution, there must be evidence that the probationer willfully refused to pay or 

failed to make bona fide efforts to pay. Id. at 672–73; Cole v. State, 578 S.W.2d 127, 128 (Tex. 

Crim. App. 1979); Gipson v. State, 347 S.W.3d 893, 896–97 (Tex. App.—Beaumont 2011, pet.

granted); Lively v. State, 338 S.W.3d 140, 144 (Tex. App.—Texarkana 2011, no pet.).

Once the State proves the failure to pay by a preponderance of the evidence, the trial 

court must then consider statutory factors when it determines whether to revoke community 

supervision. TEX. CODE CRIM. PROC. ANN. art. 42.037(h) (West Supp. 2012). As the Texarkana 

Court of Appeals has noted, the legislative history of Article 42.037(h) shows that the factors

account for the constitutional protections outlined in Bearden that require inquiry into the 

probationer’s ability to pay. Lively, 338 S.W.3d at 145 (citing Criminal Justice Comm., Bill 

Analysis, Tex. H.B. 312, 80th Leg., R.S. (2007) (“This bill conforms the statute to the 

requirements of the Due Process Clause as interpreted by the United States Supreme Court in 

Bearden v. Georgia.”)). Therefore, when a trial court hears evidence and weighs the statutory 

factors in making its determination, the court satisfies the due process protections. 

Velasquez admitted that he failed to pay restitution as ordered by the court, but he

pleaded not true because of inability to pay. After the State established the failure to pay, 

Velasquez testified that he did not have the ability to pay and entered into evidence a letter from 

the Social Security Administration in which the SSA confirmed his income. He also entered into 

evicence a letter from his physician in which the physician confirmed his disability. 

Additionally, he testified that he owned no property or assets other than his home and that his exwife, who is the recipient of the restitution, credited $36,000 toward the total amount of 

restitution Velasquez owed. Nonetheless, the trial court proceeded to adjudicate his guilt on the 

original charge of bail jumping and failure to appear. In its judgment, the court stated that its

“Grounds for Revocation” was that Velasquez “pled true to all allegations as numbered in the 

State’s Motion.”
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While it is true that Velasquez did not pay and did not contest this fact, before a court can 

revoke community supervision and proceed to adjudicate solely for failure to pay restitution, the 

court “shall consider” the factors outlined by the legislature that inquire into the reasons for the 

failure to pay. Article 42.037(h). If Velasquez had pleaded true to an allegation that he willfully

failed to pay restitution, his plea alone would support revocation, but he pleaded “not true based 

[on] inability to pay.” Without more, his plea alone is insufficient to support revocation based 

solely on his failure to pay restitution. See Bearden, 461 U.S. at 672–73; Cole, 578 S.W.2d at 

128; see also Gipson, 347 S.W.3d at 895; Lively, 338 S.W.3d at 145–46. Because the record 

shows that the trial court relied on the plea alone and does not show that the trial court 

considered the statutory factors and reason for failure to pay restitution, we conclude that the trial 

court abused its discretion when it revoked Velasquez’s community supervision. Velasquez’s 

sole issue is sustained

We reverse the trial court’s judgment and remand the cause for further proceedings 

consistent with this opinion. 

JIM R. WRIGHT

CHIEF JUSTICE

October 11, 2012

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel2consists of: Wright, C.J.,

McCall, J., and Hill.3

 

2

Eric Kalenak, Justice, resigned effective September 3, 2012. The justice position is vacant pending appointment of a 

successor by the governor or until the next general election.

3

John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.